Illinois Official Reports Supreme Court Price v. Philip Morris, Inc., 2015 IL 117687 Caption in Supreme Court: SHARON PRICE et al., Appellees, v. PHILIP MORRIS, INC., Appellant. Docket No. 117687 Filed November 4, 2015 Decision Under Review Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Dennis P. Ruth, Judge, presiding. Judgment Judgments vacated. Cause dismissed. Counsel on Appeal James R. Thompson, George C. Lombardi, and Matthew R. Carter, of Winston & Strawn LLP, Michele Odorizzi, of Mayer Brown LLP, and Kevin M. Forde and Joanne R. Driscoll, of Forde Law Offices LLP, all of Chicago, Larry Hepler and Beth Bauer, of HeplerBroom LLC, of Edwardsville and Lisa S. Blatt and Sarah M. Harris, of Arnold & Porter LLP, of Washington, DC, for appellant.
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Illinois Official Reports
Supreme Court
Price v. Philip Morris, Inc., 2015 IL 117687
Caption in Supreme
Court:
SHARON PRICE et al., Appellees, v. PHILIP MORRIS, INC.,
Appellant.
Docket No.
117687
Filed
November 4, 2015
Decision Under
Review
Appeal from the Appellate Court for the Fifth District; heard in that
court on appeal from the Circuit Court of Madison County, the Hon.
Dennis P. Ruth, Judge, presiding.
Judgment
Judgments vacated.
Cause dismissed.
Counsel on
Appeal
James R. Thompson, George C. Lombardi, and Matthew R. Carter, of
Winston & Strawn LLP, Michele Odorizzi, of Mayer Brown LLP, and
Kevin M. Forde and Joanne R. Driscoll, of Forde Law Offices LLP, all
of Chicago, Larry Hepler and Beth Bauer, of HeplerBroom LLC, of
Edwardsville and Lisa S. Blatt and Sarah M. Harris, of Arnold &
Porter LLP, of Washington, DC, for appellant.
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Joseph A. Power, Jr., and Todd A. Smith, of Power Rogers & Smith,
of Chicago, and George A. Zeles, Maximillian C. Gibbons and
Matthew C. Davies, of Chicago, and Stephen M. Tillery, Robert L.
King and Aaron M. Zigler, of St. Louis, Missouri, all of Korein
Tillery, Michael J. Brickman and Nina Fields Britt, of Richardson,
Patrick Westbrook & Brickman, of Charleston, South Carolina, and
David C. Frederick and Joshua D. Branson, of Kellogg, Huber,
Hansen, Todd, Evans & Figel, of Washington, D.C., for appellees.
Michael Resis and Britta Sahlstrom, of SmithAmundsen, LLC, of
Chicago, for amicus curiae Illinois Association of Defense Trial
Counsel.
Stephanie A. Scharf, Sarah R. Marmor and George D. Sax, of Scharf
Banks Marmor LLC, of Chicago (Hugh F. Young, Jr., of Reston,
Virginia, of counsel) for amicus curiae Product Liability Advisory
Council, Inc.
Patricia C. Bobb, of Chicago, for amicus curiae Economic Scholars.
Joel J. Africk and Todd D. Fraley, of Chicago, for amici curiae Public
Health Associations et al.
Bruce Robert Pfaff, of Pfaff, Gill & Ports, Ltd., of Chicago, for amicus
curiae Cooney & Conway.
John B. Kralovec. of Kralovec, Jambois & Schwartz, of Chicago, for
amici curiae Law Professors of Civil Procedure.
Justices
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Karmeier and Theis concurred in
the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Kilbride.
Justice Thomas took no part in the decision.
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OPINION
¶ 1 The plaintiffs, Sharon Price and Michael Fruth, as individuals and on behalf of a class of
similarly situated individuals, filed a petition in the circuit court of Madison County seeking
relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2012)). The circuit court denied the petition on the merits and the appellate
court reversed (2014 IL App (5th) 130017).
¶ 2 Because plaintiffs’ petition sought vacatur of the judgment rendered by this court in Price
v. Philip Morris, Inc., 219 Ill. 2d 182 (2005), we hold that both the circuit court, and the
appellate court on review of the circuit court’s judgment, erred in considering the merits of
plaintiffs’ petition. Section 2-1401 does not authorize the circuit court to vacate the judgment
of a reviewing court. Instead, a litigant seeking to vacate the judgment of a reviewing court
after the rehearing period has expired and the mandate has issued must file a motion to recall
the mandate in the reviewing court which rendered the contested judgment. We therefore
vacate the judgments of the lower courts and dismiss this cause of action without prejudice to
plaintiffs to file a motion to recall the mandate in this court. We express no opinion on the
merits of such a motion, should one be filed at a future date.
¶ 3 BACKGROUND
¶ 4 In February 2000, plaintiffs filed a class action lawsuit in the circuit court of Madison
County against the defendant, Philip Morris, Inc. The suit alleged that defendant’s use of the
terms “lights” and “lowered tar and nicotine” on the packaging and in the marketing of its
Marlboro Lights and Cambridge Lights cigarettes (Lights) violated the Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998))
and the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 1998)).
Plaintiffs alleged that, “ ‘when smoked under actual conditions’ ” by consumers, Lights failed
to provide “ ‘lowered tar and nicotine’ ” as compared to conventional cigarettes and, thus, the
descriptors used by defendant were deceptive. Price, 219 Ill. 2d at 209-11. Plaintiffs did not
seek damages for personal injuries, if any, resulting from their consumption of Lights. Instead,
they sought only economic damages, based on their contention that they did not receive what
defendant told them they would receive when they purchased Lights, i.e., a cigarette that
delivered less tar and nicotine than conventional cigarettes and that was, therefore, safer. Id. at
209.
¶ 5 Defendant raised numerous defenses in response to plaintiffs’ complaint. Relevant here,
defendant argued that plaintiffs’ complaint was barred by section 10b(1) of the Consumer
Fraud Act (815 ILCS 505/10b(1) (West 1998)). This provision states that nothing in the
Consumer Fraud Act shall apply to “[a]ctions or transactions specifically authorized by laws
administered by any regulatory body or officer acting under statutory authority of this State or
the United States.” Id. Relying on various exhibits as well as expert testimony, defendant
asserted that its use of the terms “light” and “lowered tar and nicotine” complied with policies
promulgated by the Federal Trade Commission (FTC) and, thus, plaintiffs’ complaint should
not go forward.
¶ 6 The circuit court rejected defendant’s proffered defenses, including its defense based on
section 10b(1). The court certified a class consisting of all purchasers of Lights in Illinois from
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1971 to 2001, approximately 1.14 million people. On March 21, 2003, following a bench trial,
the circuit court rendered judgment in favor of plaintiffs and awarded compensatory and
punitive damages totalling $10.1 billion.
¶ 7 This court granted direct review under Supreme Court Rule 302(b) (Ill. S. Ct. R. 302(b)
(eff. Oct. 4, 2011)) and, on December 15, 2005, reversed the judgment of the circuit court. In
its opinion, this court concluded that the FTC had “specifically authorized” defendant’s use of
the descriptors “light” and “lowered tar and nicotine,” thereby barring plaintiffs’ complaint. In
reaching this conclusion, the court first explained that “the FTC’s informal regulatory activity,
including the use of consent orders, comes within the scope of section 10b(1)’s requirement
that the specific authorization be made ‘by laws administered by’ a state or federal regulatory
body.” Price, 219 Ill. 2d at 258. This conclusion was consistent, the court stated, with the
testimony of defendant’s expert witness, Dr. John Peterman, a former FTC bureau director,
who testified that “the FTC uses consent orders to provide guidance to the entire cigarette
industry.” Id.
¶ 8 This court then found that, in a 1971 consent order (In re American Brands, Inc., 79 F.T.C.
255 (1971)):
“the FTC could, and did, specifically authorize all United States tobacco companies to
utilize the words ‘low,’ ‘lower,’ ‘reduced’ or like qualifying terms, such as ‘light,’ so
long as the descriptive terms are accompanied by a clear and conspicuous disclosure of
the ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised
cigarette.” Price, 219 Ill. 2d at 265.
¶ 9 The court also found that the FTC reiterated this authorization in a 1995 consent order
(In re American Tobacco Co., 119 F.T.C. 3 (1995)). This order, the court stated, “forbade the
representation of tar ratings as ‘a numerical multiple, fraction or ratio of the tar or nicotine
ratings of any other brand,’ but specifically allowed the ‘express or implied representation’
that a cigarette is ‘ “low,” “lower,” or “lowest” in tar and/or nicotine.’ ” Price, 219 Ill. 2d at
265-66. Accordingly, this court held that plaintiffs’ claim was “barred by section 10b(1) of the
Consumer Fraud Act.” Id. at 266.
¶ 10 Although this ruling resolved the appeal, the court also noted that it had “reservations”
about the “existence of individual issues” concerning deception, causation and injury “that
might make class certification inappropriate,” as well as “grave reservations” about plaintiffs’
theory of damages in the case. Id. at 268-71. The court did not, however, rule on these issues.
The court concluded its opinion by stating that the judgment of the circuit court was reversed
and that the cause was remanded “with instructions to dismiss pursuant to section 10b(1) of the
Consumer Fraud Act.” Id. at 274.
¶ 11 Justice Karmeier, joined by Justice Fitzgerald, specially concurred, finding that plaintiffs’
consumer fraud claim failed for the “additional and more basic reason” that plaintiffs had
“failed to establish that they sustained actual damages.” Id. at 275 (Karmeier, J., specially
concurring, joined by Fitzgerald, J.). Justice Freeman and Justice Kilbride each dissented from
the judgment of the court. The dissenting justices rejected the court’s conclusion that
plaintiffs’ complaint was barred by section 10b(1) as well as the special concurrence’s
conclusion that plaintiffs had failed to establish actual damages. Id. at 285-337.
¶ 12 The court stayed its mandate while plaintiffs petitioned the United States Supreme Court
for writ of certiorari. The mandate was issued by this court on December 5, 2006, after
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certiorari was denied. On December 18, 2006, the circuit court dismissed plaintiffs’ complaint
with prejudice in accordance with this court’s mandate.
¶ 13 On December 18, 2008, plaintiffs commenced the present action by filing a petition for
relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2012)) in the circuit court of Madison County. As ultimately amended, plaintiffs’
petition focused primarily on an amicus curiae brief that had been filed by the FTC in the
United States Supreme Court case, Altria Group, Inc. v. Good, 555 U.S. 70 (2008). Plaintiffs
alleged that, in this brief, which had been filed subsequent to the dismissal order in Price, the
FTC indicated that it had not authorized cigarette companies to use descriptors such as “light”
or “lowered tar and nicotine.” Plaintiffs contended that the FTC statements in the brief, as well
as other actions taken by the FTC subsequent to Price, constituted “new evidence” that merited
relief from judgment under section 2-1401. Plaintiffs asserted in their petition that they had:
“a meritorious claim because the newly-available evidence discussed above contradicts
the factual record that led to the conclusion that section 10(b)(1) of the Illinois
Consumer Fraud Act exempted Philip Morris’ conduct from liability. Because that
conclusion was pivotal and necessary to the Supreme Court’s reversal of the March 21,
2003 judgment in this case, Plaintiffs, who prevailed on their claims in the trial court,
have a meritorious claim.”
¶ 14 Plaintiffs’ petition concluded by stating that, “[a]s the final judgment was predicated on an
inaccurate interpretation of the historical record, the newly-available evidence would have
prevented entry of the judgment.” Plaintiffs therefore requested the circuit court “to vacate the
final judgment in this case.”
¶ 15 The circuit court dismissed plaintiffs’ section 2-1401 petition, finding that the petition had
not been filed within the time limits required under that statute (735 ILCS 5/2-1401(c) (West
2006)). The appellate court reversed that determination and remanded the matter to the circuit
court to address the merits of plaintiffs’ petition. Price v. Philip Morris, Inc., No. 5-09-0089
(2011) (unpublished order under Illinois Supreme Court Rule 23). This court denied
defendant’s petition for leave to appeal. Price v. Philip Morris Inc., No. 112067 (Ill. Sept. 30,
2011).
¶ 16 On remand, the circuit court explained that, for relief to be granted under section 2-1401,
plaintiffs had to show that it was more probably true than not that defendant’s section 10b(1)
defense would have failed if the FTC position had been presented in the underlying case. The
circuit court then stated:
“this case is in a unique procedural posture as Plaintiffs in fact prevailed at the trial
level. Defendant only prevailed, in its affirmative defense, on direct appeal to the
Illinois Supreme Court. Thus this Court must determine whether it is more probably
true than not that, had the FTC position been presented in the record on appeal, the
Illinois Supreme Court would not have ruled in Defendant’s favor on its affirmative
defense that Plaintiffs’ claim was exempt pursuant to Section 10b(1) of the [Consumer
Fraud Act].”
After reviewing the parties’ arguments, the circuit court concluded that “it appears probable
that, had the FTC position been known to the Illinois Supreme Court, the court would have
given deference to the FTC and not have found in Defendant’s favor on the Section 10b(1)
exemption.”
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¶ 17 However, the circuit court then went on to hold that, because this court in Price had
expressed “grave reservations” regarding plaintiffs’ theory of damages, and because the
special concurrence had expressly found for defendant on the issue of damages, it was “likely”
defendant would have prevailed in the case even if the section 10b(1) defense had not
succeeded. The circuit court therefore denied plaintiffs’ section 2-1401 petition on the merits,
holding that plaintiffs had failed to show that it was “more probably true than not” that Price
would have been decided differently, even given the information in plaintiffs’ petition.
¶ 18 The appellate court again reversed. 2014 IL App (5th) 130017. The appellate court
concluded that the only issue that was properly before it was whether the statements made by
the FTC in 2008 would have altered this court’s resolution of the section 10b(1) issue, and that
any inquiry into what this court would have decided had it addressed the issue of damages was
impermissibly speculative. See id. ¶ 50. Describing the FTC amicus brief as “contain[ing]
direct statements that the FTC never intended to authorize use of the terms” used by defendant
(emphases in original) (id. ¶ 55),” the appellate court concluded it was “easy to see” how this
court’s analysis “would have been changed” (id.).
¶ 19 After addressing the remaining elements of the section 2-1401 petition, the appellate court
held that plaintiffs were entitled to relief. Noting that “the unique procedural history” of the
case left it with little guidance in resolving the question of what relief could be granted, the
appellate court ordered the circuit court to restore the parties to the status quo that existed
before defendant filed its appeal from the original circuit court judgment in plaintiffs’ favor.
This had the effect of reinstating the original $10.1 billion judgment that had been vacated by
this court in Price. Id. ¶¶ 59-60.
¶ 20 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2013).
¶ 21 ANALYSIS
¶ 22 At issue in this case is whether the appellate court correctly reversed the judgment of the
circuit court denying plaintiffs’ petition brought pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2012)). Section 2-1401 of the Code of Civil
Procedure creates a comprehensive statutory procedure for obtaining relief from final orders
and judgments more than 30 days after their entry. Warren County Soil & Water Conservation
District v. Walters, 2015 IL 117783, ¶ 31. The statute abolishes the common-law writs that
once provided the means to collaterally challenge final judgments and replaces them with a
single, postjudgment petition. Section 2-1401(a) provides:
“(a) Relief from final orders and judgments, after 30 days from the entry thereof,
may be had upon petition as provided in this Section. Writs of error coram nobis and
coram vobis, bills of review and bills in the nature of bills of review are abolished. All
relief heretofore obtainable and the grounds for such relief heretofore available,
whether by any of the foregoing remedies or otherwise, shall be available in every case,
by proceedings hereunder, regardless of the nature of the order or judgment from which
relief is sought or of the proceedings in which it was entered. Except as provided in
Section 6 of the Illinois Parentage Act of 1984, there shall be no distinction between
actions and other proceedings, statutory or otherwise, as to availability of relief,
grounds for relief or the relief obtainable.” 735 ILCS 5/2-1401(a) (West 2012).
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¶ 23 Section 2-1401(b) requires the petition to be filed in the “same proceeding” in which the
contested order or judgment was entered, but the petition is not a continuation of the original
action. 735 ILCS 5/2-1401(b) (West 2012). Instead, the section 2-1401 petition is an initial
pleading that commences a new and separate cause of action, subject to the usual rules of civil
procedure. People v. Vincent, 226 Ill. 2d 1, 7-8 (2007). Relief under section 2-1401 is
predicated on the showing of a defense or claim that would have precluded rendition of the
judgment in the original action as well as diligence in both discovering the defense or claim
and presenting the petition. Id. The petition must be supported by affidavit or other appropriate
showing as to matters not of record and must be filed no later than two years after the entry of
the contested order or judgment. Id. at 7.
¶ 24 Defendant initially contends that both the circuit court and the appellate court, on review of
the circuit court’s judgment, erred in considering the merits of plaintiffs’ section 2-1401
petition. Defendant maintains that plaintiffs’ petition sought to vacate the judgment rendered
by this court in Price and that the lower courts have no authority to grant such relief.
¶ 25 To better understand defendant’s argument, it will be helpful at the outset to review how
section 2-1401 applies when the judgment being challenged is one that was rendered by a
circuit court. When a petitioner seeks relief from the final judgment of a circuit court under
section 2-1401, the petition must be filed in the circuit court in which the contested judgment
was entered and must allege either that the petitioner had a valid claim in the original action (if
he was an unsuccessful plaintiff) or a valid defense (if he was an unsuccessful defendant). See
generally Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice Notes, at 610-11
(Smith-Hurd 1983). If the petitioner is able to satisfy the requirements of section 2-1401, the
circuit court will then grant relief directed against its original judgment. In other words, when a
petitioner invokes section 2-1401 to obtain relief from an adverse circuit court judgment, the
petitioner is asking the circuit court to revisit the correctness of the court’s own judgment. See,
e.g., Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986).
¶ 26 This is true even if the original circuit court judgment was affirmed on appeal before the
petitioner filed the section 2-1401 petition. The section 2-1401 petition is a new action, based
on matters that were not of record in the original action and that were not considered by the
appellate court. Relief, if it is granted, is premised on the theory that these new matters would
have changed the result in the original circuit court action. Thus, the fact that a circuit court
judgment has been affirmed on appeal does not preclude the filing of a section 2-1401 petition.
The section 2-1401 petitioner is still, in these circumstances, asking only that the circuit court
revisit the correctness of its own, adverse judgment. See People v. Partee, 125 Ill. 2d 24, 35
(1988) (the filing of a direct appeal does not affect the availability of postjudgment relief from
an adverse circuit court judgment); People v. Dabbs, 372 Ill. 160, 165-66 (1939) (construing
section 72 of the Civil Practice Act of 1933, a statutory predecessor to section 2-1401). See
also Standard Oil Co. of California v. United States, 429 U.S. 17 (1976) (reaching the same
result under federal law).
¶ 27 In this case, however, when plaintiffs filed their section 2-1401 petition in circuit court
they did not, and could not, ask the court to revisit the correctness of its original judgment
rendered in March, 2003. Plaintiffs won in the original action in circuit court and there was,
therefore, no adverse judgment from which they needed to obtain relief. Instead, the adverse
judgment was rendered by this court, when plaintiffs lost on direct appeal in Price. Thus,
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defendant asserts that the prayer in plaintiffs’ petition that the circuit court “vacate the final
judgment in this case” is, in fact, a request by plaintiffs to the circuit court to grant relief from
this court’s judgment. This, defendant maintains, is impermissible, because a lower court does
not have the authority to vacate the judgment of a higher court.
¶ 28 Plaintiffs respond by contending that “section 2-1401 relief is available from a final
judgment entered by or at the direction of a higher court” (emphasis added). Plaintiffs, thus,
make two arguments. First, plaintiffs contend that as a general matter, section 2-1401
authorizes the circuit court to grant relief from a “final judgment entered by” a reviewing court.
Therefore, plaintiffs assert, the circuit court in this case was authorized to vacate the judgment
rendered by this court in Price on December 15, 2005. Second, plaintiffs point out that, after
reversing the judgment of the circuit court, our opinion in Price remanded the cause to the
circuit court with instructions to dismiss the action. In compliance with these instructions, an
order of dismissal was entered in the circuit court on December 18, 2006. Plaintiffs maintain
that the order of dismissal may be considered distinct or separate from this court’s judgment in
Price and, even though it was “entered *** at the direction of a higher court,” they may seek
relief from that order of dismissal. Thus, according to plaintiffs, even if section 2-1401 did not
authorize the circuit court to vacate this court’s judgment in Price, it did authorize the circuit
court to vacate the order of dismissal and relief may be granted on that basis. We address these
arguments in turn.
¶ 29 A. Section 2-1401 Does Not Authorize the Circuit Court to
Vacate the Judgment of a Reviewing Court
¶ 30 Plaintiffs’ contention that section 2-1401 authorizes the circuit court to vacate the
judgment of a higher court presents a question of statutory interpretation. When interpreting a
statute, our primary objective is to give effect to the legislature’s intent, presuming that the
legislature did not intend to create absurd, inconvenient or unjust results. People v. Gaytan,
2015 IL 116223, ¶ 23. The best indication of that intent is found in the statutory language,
given its plain and ordinary meaning. Illinois State Treasurer v. Illinois Workers’
Compensation Comm’n, 2015 IL 117418, ¶ 21. Further, in determining legislative intent, we
may consider the purpose and necessity for the law as well as the consequences that would
result from interpreting the statute in one way or another. Gaytan, 2015 IL 116223, ¶ 23. The
interpretation of a statute is a question of law that is reviewed de novo. Id.
¶ 31 In support of their contention that the circuit court has the authority, under section 2-1401,
to vacate the adverse judgment of a reviewing court, plaintiffs point to the language of
subsection (a) of the statute. Plaintiffs emphasize that this provision is broadly worded to
provide a means of relief “in every case *** regardless of the nature of the order or judgment
from which relief is sought or of the proceedings in which it was entered.” 735 ILCS
5/2-1401(a) (West 2012). Plaintiffs further observe that the statute does not contain any
exception for judgments rendered by a reviewing court. Therefore, according to plaintiffs,
section 2-1401 authorizes the circuit court to vacate a judgment rendered by a higher court. We
disagree.
¶ 32 Subsection (b) of section 2-1401 states, in part, that the petition “must be filed in the same
proceeding in which the order or judgment was entered but is not a continuation thereof.” 735
ILCS 5/2-1401(b) (West 2012). Although the term “same proceeding” is not defined in the
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statute, its use by the General Assembly has long been understood to mean that the
postjudgment petition must be filed in the same court in which the contested judgment was
entered and, when possible, assigned to the same judge who heard the original action. See, e.g.,
Kilbride v. Kilbride, 64 Ill. App. 2d 355, 360-61 (1965). To fully explain why this is so, it is
necessary to review some of the history of section 2-1401.
¶ 33 The relief sought by plaintiffs under their section 2-1401 petition in this case is that which,
at common law, was available under the writ of coram nobis. In general, the writ of coram
nobis was a means of collaterally challenging a final judgment by bringing “to the court’s
attention factual matters that, if known to the court before entry of judgment, would have
precluded entry of that judgment.” Warren County, 2015 IL 117783, ¶ 32 (citing Ellman v.
De Ruiter, 412 Ill. 285, 290 (1952), and People v. Touhy, 397 Ill. 19, 24 (1947)). See also, e.g.,
Mitchell v. King, 187 Ill. 452, 457 (1899); Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and
Practice Notes, at 604 (Smith-Hurd 1983); David G. Seykora, Recall of Appellate Mandates in
Federal Civil Litigation, 64 Cornell L. Rev. 704, 710 (1979) (noting that the writ of
coram nobis was available in both appellate and trial courts). Given its purpose, the writ of
coram nobis had to be “filed in the court that rendered the judgment” being contested. Warren
County, 2015 IL 117783, ¶ 32; Mitchell, 187 Ill. at 457 (“the assignment of error was heard in
the same court where the error was alleged to have been committed”); Ill. Ann. Stat., ch. 110,
¶ 2-1401, Historical and Practice Notes, at 608 (Smith-Hurd 1983).
¶ 34 Although a few very early Illinois cases recognized the writ of coram nobis (see, e.g.,
Beaubien v. Hamilton, 4 Ill. 213 (1841)), it was declared “obsolete” by this court in 1867 (see
McKindley v. Buck, 43 Ill. 488, 490 (1867)). In 1871, the legislature expressly abolished the
writ and replaced it with a statutory motion. Ellman, 412 Ill. at 290-91. Since that time, a series
of statutory provisions have provided a mechanism for obtaining collateral relief from final
judgments. Warren County, 2015 IL 117783, ¶ 33.
¶ 35 In People v. Sheppard, 405 Ill. 79 (1950), this court addressed one such statute, section 72
of the Civil Practice Act of 1933. At the time Sheppard was decided, section 72 provided that
all errors of fact which could have been corrected under the writ of coram nobis could “be
corrected by the court in which the error was committed, upon motion in writing” at any time
within five years after the rendition of the final judgment in the case. Ill. Rev. Stat. 1949, ch.
110, ¶ 196. While section 72 spoke only of the necessity of filing the motion in “the court in
which the error was committed,” Sheppard held that, when possible, the motion also had to be
heard by the same judge who entered the contested judgment. Sheppard, 405 Ill. at 82. As the
Sheppard court explained, this result followed from the nature of the writ of coram nobis:
“A reasonable construction of section 72 of the Civil Practice Act [Ill. Rev. Stat. 1949,
ch. 110, ¶ 196], to the extent it provides that all errors in fact, committed in the
proceedings of any court of record, and which, by the common law, could have been
corrected by the writ of error coram nobis, ‘may be corrected by the court in which the
error was committed,’ is that the motion in the nature of a writ of error coram nobis
should be presented to the same judge who rendered the original judgment. As
observed in McGrath & Swanson Construction Co. v. Chicago Railways Co. 252 Ill.
App. 479, ‘That the errors to be corrected under the writ were errors of fact would seem
to require that the writ should be brought before the same judge who rendered the
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original judgment, for he only would know whether or not he was ignorant of the fact
which if known would have prevented the judgment.’ ” Id.
¶ 36 In 1955, section 72 was substantially revised by the legislature. See Ill. Rev. Stat. 1955, ch.
110, ¶ 72. Consistent with Sheppard, the legislature changed the requirement that a section 72
motion be filed in the same court in which the error was committed to a requirement that a
postjudgment petition “be filed in the same proceeding in which the order, judgment or decree
was entered.” Ill. Rev. Stat. 1955, ch. 110, ¶ 72(2). By using the term “same proceeding,” the
legislature captured the point made in Sheppard that the petition had to be filed in the same
court in which the error occurred and, when possible, presented to the same judge who
rendered the original judgment.1 Subsequent decisions, such as Kilbride, 64 Ill. App. 2d at 359
n.*, 360-61, have recognized that the term “same proceeding” reflects the holding of
Sheppard.
¶ 37 Apart from the removal of the word “decree,” the language in the current version of section
2-1401(b) is identical to that found in the amended version of section 72 addressed by Kilbride
in 1965. Thus, for at least 50 years, Illinois courts have held that the statutory requirement that
a postjudgment petition be filed in the “same proceeding” means that the petition must be filed
in the same court in which the judgment being challenged was entered and, when possible,
heard by the same judge who rendered that judgment. See also, e.g., Warren County, 2015 IL
117783, ¶ 35 (noting that “the legislature intended section 2-1401 to operate as the statutory
analog to the common law writ” of coram nobis). From this, it follows that a litigant cannot file
a section 2-1401 petition in circuit court to vacate the judgment of a reviewing court. In such a
case, the petition would not be filed in the same court in which the judgment being challenged
was entered and, therefore, would not be filed in the “same proceeding.”
¶ 38 This understanding of section 2-1401 is compelled not only by the language and history of
the statute, but also by our constitution. The judicial article of the Illinois Constitution of 1970,
like its predecessor in the constitution of 1870, creates a three-tiered court system, with the
appellate court sitting in review of the circuit courts, and the supreme court sitting in review of
the appellate and circuit courts. Ill. Const. 1970, art. VI. A fundamental principle flows from
this hierarchical structure: “Where the Supreme Court has declared the law on any point, it
alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound
by such decision and it is the duty of such lower tribunals to follow such decision in similar
cases.” (Emphasis added.) Agricultural Transportation Ass’n v. Carpentier, 2 Ill. 2d 19, 27
(1953); Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 551 (1983); Mekertichian v.
Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004) (noting that the failure to
adhere to this principle would “inject chaos into the judicial process”).
¶ 39 When conducting a trial or other ongoing proceeding, a circuit court has the authority and
responsibility to determine whether a supreme court decision is on point and, therefore, must
be applied in the case before it, or whether the decision is distinguishable and should not be
applied. But that is not the power which section 2-1401 confers on the circuit court. Section
2-1401 gives authority to the circuit court to grant relief from a judgment, i.e., to vacate it and
1The legislature could not, of course, create a mandatory requirement that the postjudgment petition
be presented to the same judge who rendered the original judgment because of the practical limitations
of such a rule: a litigant would be left without a remedy if the judge were to retire or pass away before
the postjudgment petition was filed.
- 11 -
render it without legal effect. Vincent, 226 Ill. 2d at 7. Under our constitutional scheme, the
circuit court cannot possess that power over a reviewing court’s judgment. Thus, to say that
section 2-1401 grants a circuit court the authority to vacate the judgment of a reviewing court
would be to say that the General Assembly intended to grant an unconstitutional power to our
circuit courts. We are certain this is not the case.
¶ 40 Since, under the terms of the statute, section 2-1401 does not authorize the circuit court to
vacate a reviewing court’s judgment, should a petitioner seeking relief from a reviewing court
judgment after the mandate has issued file a section 2-1401 petition directly in the reviewing
court? No.
¶ 41 Under the Illinois Constitution of 1970, the procedures which govern appellate practice in
our reviewing courts are established by this court through its rulemaking authority, not by the
General Assembly through legislation. Ill. Const. 1970, art. VI, § 16 (“The Supreme Court
shall provide by rule for expeditious and inexpensive appeals.”); People ex rel. Stamos v.
Jones, 40 Ill. 2d 62, 66 (1968) (“the constitution has placed responsibility for rules governing
appeal in the Supreme Court, and not in the General Assembly”); Ill. Ann. Stat., ch. 110,
¶ 1-107, Historical and Practice Notes, at 34-35 (Smith-Hurd 1983) (“the Illinois Supreme
Court is granted exclusive jurisdiction over the regulation of appeals by the Judicial Article of
the Constitution of 1970”). Section 2-1401 is a provision of the Civil Practice Law, article II,
of the Code of Civil Procedure (see 735 ILCS 5/1-101(b) (West 2012)), which governs civil
practice in the circuit courts. Section 2-1401 is inapplicable to reviewing courts and, indeed, a
determination that the proceedings in the appellate or supreme court could be governed by the
legislature through section 2-1401 would raise serious separation of powers concerns. Koffski
v. Village of North Barrington, 241 Ill. App. 3d 479, 482-83 (1993).
¶ 42 This does not mean, however, that a litigant seeking relief from a reviewing court’s
judgment under circumstances similar to those present here is without a remedy. Appellate
courts “are recognized to have an inherent power to recall their mandates.” Calderon v.
Thompson, 523 U.S. 538, 549 (1998). Because of “ ‘the profound interests in repose’ ” that
attach to the mandate of a reviewing court, the power to recall a mandate is one that “can be
exercised only in extraordinary circumstances.” Id. at 550 (quoting 16 Charles Alan Wright
et al., Federal Practice and Procedure § 3938, at 712 (2d ed. 1996)). Nevertheless, this power is
long-standing, having been firmly “established in English practice long before the foundation
of our Republic.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45 (1944),
rev’d on other grounds, Standard Oil Co. of California v. United States, 429 U.S. 17 (1976)
(per curiam). See also, e.g., Ex Parte James, 836 So. 2d 813, 836-39 (Ala. 2002) (Houston, J.,
specially concurring) (collecting cases).
¶ 43 Although no Illinois Supreme Court rule addresses the general power of a reviewing court
to recall its mandate,2 Rule 361(a) provides that “an application for an order or other relief” in
the reviewing court “shall be made by filing a motion.” Ill. S. Ct. R. 361(a) (eff. Jan. 1, 2015).
Further, motions to recall the mandate have been considered, and ruled on, by this court in the
past. See, e.g., Avery v. State Farm, No. 91494, Order Denying Motion by Appellees to Recall
Mandate and Vacate August 18, 2005 Judgment (filed Nov. 17, 2011),
2Illinois Supreme Court Rule 368(c) (eff. July 1, 2006), provides that an appellate court mandate
may be recalled until the time for seeking review in this court has expired, and that this court’s mandate
may be recalled until the time for seeking review in United States Supreme Court has expired.